What comes first: the arrest, or the charge(s)?

Question

Forgive me if this seems like an asinine question, and please feel free to be as pedantic as possible if answering. I'm working on data modeling a piece of software and it's relevant to my data structure design. I appreciate any insight that can be offered.I am of the opinion that the **charge(s)** must exist before an arrest is made, i.e. one must be charged (by the police, or by another agency with the authority to make arrests) with something before they can be arrested, i.e. one is arrested *on charges*. I also realize that the charges can and do sometimes change (or disappear, for that matter) after the arrest, but for my purposes that is irrelevant. I am strictly concerned with the circumstances leading to an arrest and jail.The question also extends to summons and warrants. Charges *must* exist before one can be summoned or a warrant for the arrest issued.Am I looking at this the right way? Thanks in advance to anyone willing to take a few minutes to help me sort this out.

Answer 1

This may be an apples and oranges question. It seems you perceive arrest and charge as synonymous or co-occurring. I will explain the process and see if this helps you.

Arrest is taking a person into custody by depriving them of their liberty. A "charge" is a document formally citing the offense(s) the defendant is alleged to have committed. That may take the form of a criminal complaint or an indictment. The following is a simplistic explanation of how the process may evolve.

In the U.S., a law enforcement officer may make an arrest with or without a warrant if the officer has probable cause to believe a crime has been committed, is being committed, or is about to be committed. The officer may hold the person in custody for a reasonable time without charge. The exact amount of time is nebulous and may vary from state-to-state, but may not be excessive - usually less than 48 hours. When an arrest is made without warrant, the officer must obtain a criminal complaint or indictment and produce the defendant before the court for an initial appearance (also called arraignment) where the defendant is informed of the charges. In this procedure, the arrest precedes the charge.

The alternative, and one that typically happens in the federal system, is that the investigation is presented to a grand jury that returns a True Bill - an indictment with is the formal charge. Based upon the indictment, the court issues an arrest warrant for the defendant who is located, arrested, and brought before the court for the arraignment. In this procedure, the charge precedes the arrest.

Some jurisdictions require an indictment subsequent to arrest and charge by criminal complaint. Without getting too technical, an indictment is a finding of probable cause that a crime was committed and the defendant committed the crime. A criminal complaint is an allegation that a crime was committed and that the defendant committed the crime. Unless the defendant waives a hearing, the court must hold a probable cause hearing to determine if there is sufficient evidence to support the complaint by making a judicial finding of probable cause, the same as a grand jury would find. It is just an extra step in the process if there is no indictment.

The short answer to your question, either arrest or charge may precede the other depending upon the process and circumstances. Welcome to the simple world of criminal law!